TNR: Next, let’s have ObamaLaw

posted at 8:21 pm on February 5, 2014 by Ed Morrissey

I’m tempted to go along with Noam Scheiber on this, just out of spite to trial lawyers, but it’s as bad an idea as ObamaCare. With all of the talk about inequality coming from the White House, Scheiber argues that the real inequality in America is in equal treatment under the law — because rich people can afford much better representation than poor people can manage, even through the “public options,” if you will. The solution? Redistribution of legal resources through socializing the legal profession:

But even if legislators were to increase funding for legal aid, it would amount to a half-measure at best. We would still have the Ethan Couch problem: rich people who can buy far more justice than the average citizen thanks to nearly unlimited means. The only way to bring about the ideal of equal protection under the law is to boost spending on lawyers for the poor and middle class, and to prevent the affluent from spending freely. We must, in effect, socialize the legal profession. …

One of the fastest-growing businesses at big law firms these days is a practice known as “white-collar criminal defense,” in which former prosecutors and Security and Exchange Commission lawyers are rented out to corporate executives at $1,000 per hour. If you happen to be a junior analyst at Goldman Sachs—somewhat affluent but hardly wealthy—who gets indicted for insider-trading, there’s no way you could afford such high-class talent, and certainly not a team of world-beaters. But why shouldn’t you have the same quality defense that Goldman CEO Lloyd Blankfein would insist on?7

Clearly you should. And since there isn’t enough money in the country to allow all of us to spend as much on ourselves as Lloyd Blankfein would—to say nothing of the mega-rich like Bill Gates or Warren Buffett—then we have no alternative: We must limit what Blankfein and Buffett can spend.

The idea would be roughly as follows: in criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response. The same subsidies would apply.

Working out the particular amounts would mostly be an empirical question—Big Data can help us figure out what it costs to put together a competent legal team from case to case. But it would no doubt be a messy process that required constant refining and lots of humility. (Bands of permissible spending would probably work better in practice than fixed sums.) Still, what’s important isn’t so much that we get the amounts precisely right from the get-go. It’s not even clear that there’s such a thing as “precisely right” in some abstract sense. What’s important is that we take a critical first step toward making legal rights more equal. In any case, the beauty of the arrangement is that, with the rich and well-connected relying on similar legal resources as the poor and dispossessed, you can bet that any overly strict spending cap will be loosened (and the subsidies raised) soon enough.

Scheiber tries to anticipate one line of rebuttal:

Critics will surely dismiss this approach as illiberal. But, in fact, we already limit spending in parts of the legal system in order to put adversaries on equal footing. Small-claims courts prohibit defendants from hiring lawyers so that plaintiffs get a fair shot at representing themselves. More to the point, ensuring that no citizen can significantly outspend her adversary is actually the highest realization of liberalism.

I’d say that it’s the highest realization of progressivism, which really isn’t (or shouldn’t) be the same thing. “Liberalism” means a focus on liberty, whereas this impulse is all about restricting liberty in order to achieve a preferred outcome. We’re seeing this impulse right now in ObamaCare, where people who spend more on better comprehensive policies get penalized for doing so, even though they probably end up spending far more than they use in most years. The entire purpose of ObamaCare is to drive down to equal outcomes rather than equal opportunities and outcomes driven by one’s own productivity and choices. And a significant reaction to it is a pullback on resources, as doctors opt out of engaging the system and focus instead on so-called “concierge” services.

That’s what will happen in the legal system too, unless Scheiber really goes for full nationalization of the legal system. That’s a big problem for liberty, though, since a large part of the profession keys on protecting citizens from the actions of the government. Public defenders are provided to those without means to mount that defense by themselves because of sheer necessity, but if the entire legal system consists of government employees, the opportunities for conflicts of interest are enormous.

Scheiber concludes by noting that the proposal has a high risk of turning out badly, but says that the liberal still has to give it a shot. “In the end,” he writes, “the liberal still believes you have to try regulating behavior.” Well, we do that in accordance with the principle that one’s rights stop where another’s begins, or more bluntly, the freedom to swing your fist ends at the point of my nose. In this case, Scheiber’s talking not about “regulating behavior” but of top-down command control of an economy in order to dictate outcomes, which is about as far from classic liberalism as one can possibly imagine.

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Still, what’s important isn’t so much that we get the amounts precisely right from the get-go. It’s not even clear that there’s such a thing as “precisely right” in some abstract sense. What’s important is that we take a critical first step toward making legal rights more equal.

The idea would be roughly as follows: in criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response. The same subsidies would apply.

Who is this “we”? And wouldn’t we have to change quite a few other laws if we are limiting people getting the best possible defense?

Critics will surely dismiss this approach as illiberal. But, in fact, we already limit spending in parts of the legal system in order to put adversaries on equal footing.

You know what? Let’s go with this. One side (the defendant) only has X amount of dollars to defend himself, and the other side (the government) only has X amount to build a case. That means that X amount of dollars has to be distributed across police, detectives, and prosecutors, including the equipment like guns, squad cars, and jails.

That has to be what he’s referring to, right? Because otherwise defendant being left with a modestly capped level of defense against a government with practically infinite resources behind it doesn’t track with how it’s done in small claims. I mean, only a complete idiot would think those examples are comparable.

Scheiber concludes by noting that the proposal has a high risk of turning out badly, but says that the liberal still has to give it a shot. “In the end,” he writes, “the liberal still believes you have to try regulating behavior.”

It’s never enough for a liberal. The lightbulb in my lamp, the toilet in the bathroom, the transfat (or lack thereof) in my muffin isn’t enough,…

Considering what big donors trial lawyers are to the Democrats, I’d say this had a snowball’s chance in Hell.

The lawyers love them their big jury verdicts, and I doubt they’d want to work at the same rate as Medicare reimbursement for doctors.

In any case, the beauty of the arrangement is that, with the rich and well-connected relying on similar legal resources as the poor and dispossessed, you can bet that any overly strict spending cap will be loosened (and the subsidies raised) soon enough.

This moron doesn’t think that the rich will make payments to the rally good lawyers on the side, getting a better defense? There will be off-the-book payoffs just like in congress.

In this case, Scheiber’s talking not about “regulating behavior” but of top-down command control of an economy in order to dictate outcomes, which is about as far from classic liberalism as one can possibly imagine.

No, this is precisely classic liberalism, which has always been communitarian collectivist with a veneer of populism.

So-called “classic” liberalism goes back to the Fabian school, which believed that individual liberty must be yoked to, and by, the concept of “the greater good”. Among other things, this means that as long as you (the actor) are doing whatever you are doing in the name of that “greater good”, whatever you do is justified by- being for “the greater good”. Which is precisely the argument Scheiber is making here.

The fact that, like most such justifications, it’s the product of circular reasoning is seen, not as evidence of illogic and emotionalism, but as final and clinching proof of its fundamental rightness. That is, as he sets the parameters of the argument, it’s the only “correct” answer. Rather like this;

The Doctor; Nelly is an elephant. Elephants are pink. Therefore Nelly is pink.

Davros; Obviously.

The Doctor; Romana?

Romana(scornfully); Elephants aren’t pink.

Davros; Bah! Humans do not understand logic.

Most “classic liberal” arguments fall into this category. As this one.

The only difference between “classic” liberals using such arguments is that some actually believe they represent reality, and others are just looking for a justification for forcing society into a mold of their own choosing for their own (usually twisted) reasons.

Back in my ruffian days I had a public pretender once. I really was innocent. She listened to my whole story. Court day her turn to speak in my defense:

“I don’t know what to say your Honor,, he says he’s innocent”

The public pretenders office billed me $400.

I don’t get in trouble anymore.

And if I did, I don’t want the gubmint helping me and prosecuting me at the same time.

wolly4321 on February 5, 2014 at 8:41 PM

Here’s what I would have done if I were you. I would have complained to the judge that that information was client/attorney privileged information and that she just violated it. Then, I would have demanded another lawyer. And when I got the new one I would grill him/her to the bones to see if they know what they’re doing, and if they don’t, demand another one. I know this from first hand experience.

how the hell did the jealousy vindictiveness get this far ??
someone (hell most people) made better decisions than I did in life.
those decisions allowed them to earn more money than me.
you know what I say? good for them. wish I had made better decisions earlier on.

You can’t even disparagingly call these people “liberals” anymore. There is nothing “liberal” about them. They want to control you and society in every way. To continue to use the term is to wage war on the English language.

The problem is most attorneys make very little. There are the high rollers but not the average. An Oil Company explained it years ago. They divided the total income of attorneys by the licence count and told us the average attorney was making $35,000 annually. It had to do with the ADA and they simply said follow the law because there are a lot of broke attorneys looking for money out there. Follow the money and who has deeper pockets than Uncle Sam.

Look at how many attorneys are getting out of law school and are waiting tables now. A lot.

It’s the legal equivalent of limiting the size of gun magazines. Put limits on the amount of firepower afforded to private citizens, while the Federal Government (IRS, SEC, EPA, etc.) bleeds your legal resources dry with nuisance subpoenas, depositions, and Demands-to-Produce evidence. All the while, Government attorneys — with unlimited tax-payer resources — watch you twist in the wind. No thanks.

The thing is, the government can buy more justice than even an above-average citizen. The prosecution has all the resources of the government behind it, plus things like asset forfeiture and the threat of long prison terms if the defendant loses. People the government doesn’t like can be easily bankrupted by malicious prosecution now, and thrown in jail _and_ bankrupted under the proposed socialization of defense lawyers.

It’s the legal equivalent of limiting the size of gun magazines. Put limits on the amount of firepower afforded to private citizens, while the Federal Government (IRS, SEC, EPA, etc.) bleeds your legal resources dry with nuisance subpoenas, depositions, and Demands-to-Produce evidence. All the while, Government attorneys — with unlimited tax-payer resources — watch you twist in the wind. No thanks.

VastRightWingConspirator on February 5, 2014 at 9:14 PM

And this is very likely Scheiber’s goal. That is, to make defending yourself against a legal action by government so impossible that the vast majority of people wil be terrified of even thinking of doing anything which might bring the hammer down on them.

Forget “assault weapon bans”. What if government, in this sort of legal environment, decides to prosecute you as a felon for what they deem “improper storage” of a single-shot .22?

My guess is people would be turning in single-shot .22s to avoid the near-certainty of prison time.

Once government gets to decide what constitutes an allowable level of legal counsel, you have the Holy Inquisition. Or, for that matter, the Directory.

And don’t worry. The well-connected will have A game legal superstars anyway.

The idea may limit what legal counsel they can pay for. It doesn’t limit what they can receive pro bono.

I would expect “non-profit legal institutes” to explode under such a regime’. Offering “free” legal counsel to anyone they deem has a “worthy cause”.

Naturally, those in a position to give big donations would be defined as being “worthy”.

They defend the rich liberal on the charge of killing someone with his Lambo while driving 200 MPH on a wrong-way street, high on a synthetic drug and screaming “FLIDDDLBORRNNGG NAARRNNNJJJ!!” at the top of his lungs.

And after they get him off, he gives them a $1 million donation. (Tax-deductible, at that.)

The elite’ are protected, and the hoi polloi are once more taught their place. In the name of “egalitarianism”.

Allow all defendants to spend what the prosecution spends. Everyone worries about the rich buying justice with high priced attorneys, but what about prosecutors who often have an unlimited stream of taxpayer money. How is that fair?

Or flip it around and allow the prosecution to spend in court only as much as the defendant does.

If the defendant takes pro bono defense, the prosecution is limited to that as well… and if a district does ‘luck of the draw’ then the prosecution better have its act together and have a clean, tight case to present because the don’t know who they will get to present it.

I’m starting to like the ancient Athenian democracy for law: there are no judges, you get a huge jury, only the person bringing the case gets time to present whatever they want and then the defendant gets the same amount of time. The jury gets no instruction on the law involved, and either side can bring it up and even lie about it if they so choose.

After a guilty verdict the one bringing the charge and the defendant get to present what is acceptable to them in the way of damages, and then the jury decides on one of them.

And when the jury has a couple of hundred people in it there will always be gray areas, but majority rules. Similarly in verdict, so even if you did a grand job presenting the case if you ask for too much in the way of a penalty to the crime, then you may find yourself having to accept what the defendant thinks is reasonable.

This keeps a legal system with few and easy to memorize laws that are easy to present for ANYONE having to bring a case. And as the person bringing the case is the one to present it, they have figure out the law, what happened and then how to convince a large jury of this. You can get someone to write your speech and presentation, yes, but you present it… and there is no second bite at the cookie.

Of course this is also a system that had ostracism, so that shysters and crooked dealers might be finding themselves doing 10 years of being somewhere else for awhile.

I’m not advocating that system, mind you, but it has a number of good aspects to it, as well as awful ones. How to keep laws few, reasonable and well understood is a positive aspect… not having continuity of cases over time beyond what individuals can remember on their own, that isn’t so hot. But at the very least the onus of the cases is upon those directly involved, so no high priced legal representation. There is something positive to be said about such a system.

Actually, the most fair way to do it would be to have one lawyer doing the prosecution and the defense. They would work pro bono and all trails would be televised as a reality show. Why are libs always trying to make things fair? I’m sure there are a lot more thefts, assaults, and other assorted middle of the road crimes than high priced insider trading crimes to defend. They are trying to fix something that doesn’t need fixin’.

“In America we have capital punishment. You have the capital you don’t get the punishment.”

Apparently with the recent “affluenza” defense this is more true than a joke. Seems the Judge in this case perpetuated the problem when there was a “cure” at hand – equal treatment under the law.

As usual with socialists the “treatment” is hundreds of times worse than the “symptoms”. Life is unfair – government control in he name of fairness makes it much less fair – and more miserable all around.

I got a better idea, Lets limit the government. The government cannot spend more than the defendant is able to afford. Cap the expenditures at 20% of the defendant’s gross income. That would put everyone at a equal footing.